In re K v. CA3 ( 2016 )

Filed 2/18/16 In re K.V. CA3
/NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re K.V., a Person Coming Under the Juvenile Court C079070
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD235753)
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
J.C., father of the minor, appeals from a judgment of the juvenile court. (Welf. &
Inst. Code, §§ 358, 360, 395 [unless otherwise set forth, statutory references that follow
are to the Welfare and Institutions Code].) Appellant contends the Sacramento County
Department of Health and Human Services (the Department) failed to comply with the
1
Indian Child Welfare Act (ICWA) and the trial court erred in finding the ICWA did not
apply in this case. Appellant further contends there was insufficient evidence to support
the juvenile court’s order to bypass his services. We affirm the judgment.
FACTS AND PROCEEDINGS
The minor, K.V., was born in mid February 2015. On February 25, 2015, the
minor was removed from his mother’s care and put in emergency protective custody.
Appellant was incarcerated. Two days later, the Department filed a petition to remove
K.V. from parental custody due to mother and appellant’s drug abuse and inability to care
for the minor due to their drug abuse and appellant’s incarceration.
The minor was placed in confidential foster care. Appellant acknowledged the
minor was likely his child, denied having issues with drugs and alcohol, and expressed a
desire to “establish paternity and be active in the child’s life once he is no longer
incarcerated.” On February 11 and February 27, 2015, respectively, both mother and
appellant denied having any Indian heritage.
On March 3, 2015, appellant filed his notice of Indian status, indicating he may
have Indian ancestry. That same day, the juvenile court found insufficient evidence to
determine whether the minor is an Indian child. The court also ordered appellant to
complete and return the “Indian Ancestry Questionnaire” to the Department within two
days and ordered the Department to provide notice to any federally recognized tribes.
The minor continued in foster care and the court ordered no visitation to take place
between appellant and the minor “while [appellant] is incarcerated and until paternity has
been established.”
On March 27, 2015, appellant executed a voluntary declaration of paternity
declaring himself to be the father of the minor. The juvenile court thus determined
appellant to be the minor’s presumed father.
2
The combined hearing on jurisdiction and disposition took place on April 10,
2015. Appellant was present and represented by counsel. No witnesses were presented
but appellant, through his counsel, denied the allegation that he was addicted to drugs.
He did, however, acknowledge it was factually true that he was currently incarcerated.
He then submitted the matter on the Department’s report. The juvenile court found the
minor was not an Indian child and sustained the petition.
Addressing disposition, the Department recommended appellant be bypassed for
reunification services under section 361.5, subdivision (e)(1). The Department reported
that appellant’s sentence for his most recent conviction was 16 months thus well beyond
the reunification period for a child under three years old. Additionally, the Department
reported, appellant had numerous prior convictions and a history of drug abuse, for which
he refused to seek treatment, having failed to complete a Proposition 36 drug treatment
program.
Appellant argued that the six-month reunification period was “not a concrete
standard if he’s participating and making progress.” Moreover, he was eligible to serve
“half-time” and may get out of jail even sooner. Thus, the length of his incarceration
should not be a deterrent to ordering services. He also argued that he in fact wanted to
reunify with the minor and should be given an opportunity to do that. Appellant also
asked for a DNA test to prove he was the minor’s biological father.
The juvenile court agreed with the Department and concluded that providing
services to appellant would be detrimental to the minor. In reaching its decision, the
court considered the minor’s young age (he was two months old), and the fact that the
minor had never met appellant so the minor had no relationship with appellant. The court
also was “concerned by [appellant’s] recent doubt that he is the biological father of the
[minor] and his doubt as to how the result of that DNA association would affect his
ability to bond with the [minor].”
3
In addition, the court noted the length of appellant’s incarceration, which was
“certainly close to the period of time within which [he] would have an opportunity to
seriously participate in services . . . .” And, the possibility of extending the reunification
period to accommodate appellant’s period of incarceration would “delay the permanency
for the child.” Thus, “[t]aking into consideration the whole of the evidence,” the juvenile
court found by clear and convincing evidence that offering services to appellant would be
detrimental to the minor.
DISCUSSION
I
ICWA
Appellant contends the juvenile court erred by finding the ICWA inapplicable
because the Department failed to comply with the ICWA by not sending ICWA notice
and inquiry to the Bureau of Indian Affairs (BIA) after appellant claimed he may have
Indian ancestry. We agree but find the Department has cured the error. We also grant
the Department’s request for judicial notice in its entirety.
When the juvenile court knows or has reason to know that a child involved in a
dependency proceeding is an Indian child, the ICWA requires that notice of the
proceedings be given to any federally recognized Indian tribe of which the child might be
a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A.
(2007) 147 Cal. App. 4th 982, 989 (Robert A.).) A mere suggestion of Indian ancestry is
sufficient to trigger the notice requirement. (Robert A., at p. 989.) Notice requirements
are construed strictly. (Ibid.)
Section 224.3, subdivision (a) imposes “an affirmative and continuing duty to
inquire” whether a child is or may be an Indian child. Notice must include all of the
following information, if known: the child’s name, birthplace, and birth date; the name
of the tribe in which the child is enrolled or may be eligible for membership; names and
4
addresses (including former addresses) of the child’s parents, grandparents, and great-
grandparents, and other identifying information; and a copy of the dependency petition.
(25 C.F.R. § 23.11(d)(1)-(4) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011)
193 Cal. App. 4th 413, 417; In re Mary G. (2007) 151 Cal. App. 4th 184, 209.)
Because the ICWA’s primary purpose is to protect and preserve Indian tribes, a
parent does not forfeit a claim of ICWA notice violation by failing to raise it in the
juvenile court. (In re J.T. (2007) 154 Cal. App. 4th 986, 991; Nicole K. v. Superior Court
(2007) 146 Cal. App. 4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal. App. 4th 731,
738-739.)
On March 3, 2015, before the jurisdiction/disposition hearing, appellant gave
notice through a Parental Notification of Indian Status (ICWA-020) form that he may
have Indian ancestry, though he did not identify any tribal affiliations. That was
sufficient to trigger the duty of notice and inquiry under the ICWA. (Robert A., supra,
147 Cal.App.4th at p. 989.) The court thus ordered the Department to send notice and
inquiry to any federally recognized tribes. The court also ordered appellant to complete
an Indian Ancestry Questionnaire. Prior to appellant filing this appeal, neither the
Department nor appellant complied with the court’s orders.
But on September 3, 2015, the Department mailed an ICWA-030 form with
supporting documents to the BIA as well as appellant. The BIA responded saying there
was insufficient information to determine tribal affiliation. The Department continued
their efforts to obtain additional information from appellant regarding his claim of Indian
ancestry, to no avail. The juvenile court subsequently ruled sufficient notice was given
and found the ICWA did not apply. We conclude the Department has cured its error
without prejudice to appellant and appellant’s claim is moot. Moreover, given
appellant’s failure to cooperate further with the Department during the inquiry into the
child’s ancestry, appellant’s claim is forfeited.
5
II
Sufficiency of the Evidence to Bypass Services
Appellant further contends there was insufficient evidence to support bypassing
services to him. When the sufficiency of the evidence to support a finding or order is
challenged on appeal, even where the standard of proof in the trial court is clear and
convincing, the reviewing court must determine if there is any substantial evidence--that
is, evidence which is reasonable, credible and of solid value--to support the conclusion of
the trier of fact. (In re Angelia P. (1981) 28 Cal. 3d 908, 924; In re Jason L. (1990)
222 Cal. App. 3d 1206, 1214.) In making this determination, we recognize that all
conflicts are to be resolved in favor of the prevailing party and that issues of fact and
credibility are questions for the trier of fact. (Jason L., at p. 1214; In re Steve W. (1990)
217 Cal. App. 3d 10, 16.) The reviewing court may not reweigh the evidence when
assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal. 4th 295, 318-
319.)
When a child is removed from parental custody, the juvenile court must order
reunification services to assist the parents in reuniting with the child. (§ 361.5, subd. (a).)
Where the child is under three years old on the date of removal from the physical custody
of his parent, reunification services shall be provided for six months from the date of
disposition, but no longer than 12 months from the date the child entered foster care.
(§ 361.5, subd. (a)(1)(B).)
Section 361.5, subdivision (e)(1) allows for the provision of services to
incarcerated parents, but also includes an exception, consistent with the recognition that
in some circumstances the provision of services to an incarcerated parent may not be in
the child’s best interest and may be an exercise in futility. Thus, “[i]f the parent or
guardian is incarcerated, . . . the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be detrimental to the
6
child. In determining detriment, the court shall consider the age of the child, the degree
of parent-child bonding, the length of the sentence, the length and nature of the treatment,
the nature of the crime or illness, the degree of detriment to the child if services are not
offered and, for children 10 years of age or older, the child’s attitude toward the
implementation of family reunification services, the likelihood of the parent’s discharge
from incarceration, institutionalization, or detention within the reunification time
limitations described in subdivision (a), and any other appropriate factors.” (§ 361.5,
subd. (e)(1), italics added.)
Here, the minor was two months old at disposition and appellant was sentenced to
a term of 16 months. Thus, he was not scheduled to be released until at or about the date
the reunification period would end. (§ 361.5, subd. (a)(1)(B).) Appellant argues, as he
did in the juvenile court, that his release date may be sooner because he was “eligible to
serve half his sentenced time, . . . ” and if he was “transferred to a prison facility” his
time in custody would be further reduced. But we review the juvenile court’s decision
based on the facts and record as they stood at the time of the dispositional hearing, and he
was sentenced to 16 months. (See In re Isayah C. (2004) 118 Cal. App. 4th 684, 701.)
Appellant’s speculation on his release date is not a legal basis for reversing the juvenile
court’s decision.
Moreover, at the time of the disposition hearing, appellant had no relationship with
the minor, having been incarcerated since the minor’s birth. And, appellant continued to
deny his documented history of substance abuse. Thus, there was no bond between
appellant and the minor and appellant had not even begun the time-consuming process of
resolving his substance abuse in order to reunify with the minor. In sum, there was
substantial evidence supporting the juvenile court’s finding that father was incarcerated
and providing reunification services would be detrimental to the minor.
7
DISPOSITION
The judgment is affirmed.
HULL , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
8